Letter to the Hon. Jane Nishida, Acting Administrator of the US Environmental Protection Agency - Velázquez Calls on the EPA to Restore Coal Ash Safeguards

Letter

Dear Acting Administrator Nishida:

As Members of Congress, we are writing to respectfully request that the Environmental Protection Agency (EPA) use its authority to restore the 2015 Coal Ash Rule by amending and finalizing the "Phase 2" rule in order to require more stringent protections of air and water for hazardous substance coal ash waste piles and to prohibit the use of unencapsulated coal ash as structural fill.

As developed by the Obama Administration, the 2015 Coal Ash Rule was designed to protect communities and water resources across the United States from toxic coal ash contamination. Coal ash waste contains heavy metals such as arsenic, a carcinogen, and lead and lithium, both neurotoxins. Coal ash waste also contains many other toxic chemicals that harm every major organ in the human body. Millions of tons of coal ash have been used as fill causing this toxic waste to leach into groundwater and surface water, which can be dispersed through air.

On August 14, 2019, based on utility industry stakeholder input, the Trump Administration issued the Phase 2 rule proposal to revise the 2015 Coal Ash Rule's annual groundwater monitoring and corrective action reporting requirements, establish an alternate risk-based groundwater protection standard for boron, and revise the publicly accessible Coal Combustion Residuals (CCR) website requirements. The Phase 2 rule, which currently remains open, also proposes to reconsider CCR use as fill and assesses the environmental and human health impacts of CCR piles in an effort to address provisions of the Phase 1 final rule that were remanded back to EPA on August 21, 2018 by the U.S. Court of Appeals for the D.C. Circuit.

Rather than strengthening the 2015 coal ash waste and water protection rules, the Phase 2 proposal lifts health-protective safeguards on coal ash waste piles, which are currently subject to all the requirements applicable to coal ash landfills, and substantially increases the amount of coal ash that can be used, without restriction, for fill projects. This proposal fails to provide sufficient protection from air and water pollution caused by coal ash. Because the proposal fails to meet the statutory standard of protection required by the Resource Conservation and Recovery Act, we believe, if finalized, the proposed rule would be questionable under current law.

To date, there are no protections against air or water pollution of unencapsulated coal ash placed on land, and inadequate limitations on the volume of ash used as fill. These fill sites have contaminated underlying groundwater with toxins exceeding federal health standards across the nation. Additionally, because the ash is not required to be covered, it releases harmful air contaminants which people then breathe into their lungs. Inhaling fugitive dust can cause ash to become lodged in the lungs, and overexposure can cause serious respiratory illnesses and irreversible damage. In the midst of a pandemic caused by a brutal virus that attacks the respiratory system, this situation is of significant concern.

Alarmingly, evidence shows that low-income communities and communities of color are most impacted by coal ash. This is illustrated by the AES-PR coal plant, as it threatens the health of residents in southeastern Puerto Rico at dozens of unencapsulated fill sites by failing to control air and water pollution from its 12-story-high coal ash waste pile in Guayama. Most of the construction sites where toxic ash is used as fill are above the South Coast aquifer, contaminating groundwater near public supply water wells. Furthermore, the fugitive dust from the AES-PR coal plant has caused higher rates of cardiovascular disease, respiratory disease, spontaneous abortions, and asthma.

Under the Obama Administration, the EPA determined that the dust from uncovered coal ash piles violates federal air quality standards. Consequently, coal ash waste piles must be covered or containerized to prevent harmful quantities of fugitive dust pollution, and closely monitored and controlled. Yet, the lack of proper regulations from President Donald Trump's EPA has allowed for the extensive use of coal ash as a cheap alternative to clean fill, resulting in serious harm to public health and the environment. Under President Trump's leadership, the EPA recently issued a Notice of Data Availability calling for further comment on these issues. Public interest groups have already submitted hundreds of pages of comments calling for more stringent regulation in response to the July 2019 Phase 2 proposal.

However, because the Phase 2 rule has not been finalized, the Biden Administration has the opportunity to rewrite this misled proposal. As such, under President Biden's leadership, we urge the EPA to commit to adequately protecting the public's health and the environment from toxic coal ash pollution by amending and finalizing the Phase 2 rule to require more stringent protections of air and water for coal ash waste piles and to prohibit the use of unencapsulated coal ash as structural fill.
Thank you for your consideration.

Sincerely,

Members of Congress

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